LEGAL REPORT ON DELHI RAPE CASE

BY:- ANKIT TIWARI ANJALI GUPTA BBA.LLB 1ST YEAR SECOND SEMESTER

Abstract: The Delhi Gang rape case of a paramedic student in a moving private bus, popularly referred to as the Damini Gang rape case is one of the few cases that have managed to enter the public domain of debates and discussions. In terms of the popular upsurge and debates, it can be seen as a successor to the Hazare phenomenon. It managed to shake the authority, negotiate with it and also became a platform for debates ranging from rape as an institution of patriarchy to the fate of the rapists. It managed to raise some new and important questions about rape in the popular discourse the many perpetrators of rape, the role of state and the need to transform the society. This paper attempts to look at these questions and the different opinions raised. In a country where every 20 minutes, a girl is raped, there was something extra-ordinary about this gang rape case, popularly known as the Damini gang-rape case that managed a fate of popular upsurge, extensive media coverage and a message from the Prime Minister but that remains a mystery. A gang rape case is also not uncommon in the capital city of Delhi. So the very first question that does arise is what had triggered the protests. Many believe that it may be because it involved a public transport and points to the lack of security for women in the public sphere. But if it has to accepted, it still seems to be a partial answer. The media, social networking sites and slogans during protests point out towards a strong sense of empathy for her. Damini was our sister or the emphasis on her lifestyle that was similar to the millions in Delhi and across. This also does not pose to be the perfect answer. While this is important, it will take us into a different direction in my quite-focused research but it was important to mention it as it will help us to locate the popular upsurge, its demands and stand. The historic part of this case is the consistent protests. The protest began on 17th December(the incident had took place on the night of 16th December) and continued for about a month. Infact, with any move of the Government or judiciary to neglect or negate the demands, there is a fresh spurt of protests. The protests have also been widespread, in terms of locale as well as involvement. There has been, undoubtedly, a labeling of the crowds. There have also been cases of violence. Along with the protests, there have been debates, the focus of this essay. There have been debates on linking rape with patriarchy, with nationalism, debates on the role of the state to control sexual violence, legal debates etc. My essay attempts to visit these debates and also highlight as well as bring out some important questions on rapes in India.

The first section of the essay will deal with rape and the judicial reform. The second section visits rape as an institution of patriarchy and debates if the solution to women's safety lies in the need to transform the society. The third section looks at rape and nationalism, state as the perpetrator of rape and rape of the other. In the conclusion, I will attempt to summaries and highlight the important concerns as well as raise some more.

Rape a judicial battle?

One of the most important debates in the popular discourse has been about the fate of the six accused, one of them being a juvenile. There have been strong voices for capital punishment. The proponents have different arguments, an important one being that it can work as an effective deterrent. There are those who say that raising the term imprisonment or implementing the existing law will do the needful, it will be effective enough. A committee known as the Justice Verma committee was formed and it had invited suggestions from the public for measures to curb rape. Following the rape incident, the Delhi Government had also ordered some new and immediate steps like increase in the police patrolling, deployment of more women police, more vigilance at night, and lighting of dark and dingy lanes. Some other steps were also suggested and implemented including reinvigoration of some existing measures but will they be actually translated into practice or remain on paper like most laws is a recurring concern. But are new laws and judicial reforms the solution to make the city safe? Pratiksha Baxi (2012) had highlighted the contradictions presented by the Government and the Indian Judiciary in dealing with the safety of women. She had referred to the case, State vs. Tarkeshwar Yadav&Ors., S.C. No: 75/2012, dated 18.12.2012 FIR No: 115/2011, P.S.: Sarai Rohilla, wherein the victim had withdrawn charges of rape and no enquiry was done for the same. She had also lashed at the trial courts criticism for judicial reforms while ignoring the existing procedural horror stories. The legal procedure in the case of rape is often considered to be the second rape. She referred to the use of lie-detection tests for rape victims, the two-finger test and the humiliation that a rape victim has to face. She argued that we also need to focus on the methods adopted by the accused side to force the victim to compromise the case. But are judicial reforms the ultimate solution to curb sexual violence in India? Can judicial reforms alone ensure the safety of women? Is rape a deviance? Is it just a law and order problem?

According to Saroj Giri (2012), the initial protests were a protest of outrage. This outrage had targets - the Chief minister Sheila Dixit, the home minister, the Delhi police and private bus operators. The target was something external. He remarked, The protests against rape had this basic tendency to regard rape as having nothing to do with the patriarchal power relations that constitute society. Instead rape is located in something external, external to an essentially good society it is a deviation, a crime, a criminal act to be explained by say the rapist's psychology but not by the tissue of social relations. Rape as a result of a criminal and sick mindset rather than what would follow from the gendered power relations that constitute this society we inhabit. Rape is not external to our society. Rapists do not constitute a different section in the society. Rapists come from this very society based on patriarchy where women have a subservient position than men. These harsh laws will only re-cast the patriarchal society, without challenging it. To quote Pothook Ghosh (2012), Demands for harsh and summary punishment for rapists, or for that matter, stringent laws to deal with rape fuelled as they are by moral outrage do little less than reinforce the capitalist structure of patriarchy. For, any such legal-juridical demand or move is willy-nilly grounded in the assumption that the capitalist-patriarchal structuring of social relations need not be transformed to protect women from sexual violence. Moreover, Ghosh pointed out the impact of these laws will not only deny them autonomous agency, as it serves to interpellate them as unequal subjects of a gendered socio-economic system, but also masks the implication of the agency of all its citizensubjects in that gender- unequal structure of social power. The gendered division will again be re-casted and in a much more stringent manner. This will remould the disciplinary control over their bodies and lifestyles, this time in the name of safety.

Rape as an institution of patriarchy

We live in a society where skirt, jeans, cell phones and cowmen are held responsible for rape. In this society, if women are raped, it is their fault. They had provoked men. Before committing the heinous crime, the girl was verbally abused and preached against lurking late at night and with a male friend. Rape is an institution of patriarchy or the male-dominated world. It is a way to control the mobility, the speech, the freedom of women. So a woman is raped or dishonored to show her her limits. The rapist's intention is not sexual pleasure (because the ONLY way in which pleasure can be had is through the reciprocity of desire, through love, through erotic engagement, not through taking away someone's agency by force and without consent). Rape is not about sex, it is about humiliation, its intention is precisely to make the raped person think that now that they have been subjected to sexual

violence, their life will no longer be worth living., remarked Shuddhabhrata Sengupta (2013). There has been a plethora of literature about abductions and mass rapes during the partition- related riots. Rape was used to dishonor the entire country so men would ask the female members of their family to kill themselves than fall into the hands of the enemy. Rape is still used as a weapon during communal riots. During the anti-Muslim riots in 2002, Ayesha Khan (2012) remarked, Fathers and brothers, farmers and traders, who were normally law abiding citizens had turned overnight rapists and molesters with impunity. They did so because of two reasons: first because an unwritten social sanction gave their crimes a moral legitimacy. The act was largely supported by Hindu women and elders who believed there was nothing amiss for Muslim women to be raped/molested or murdered, as it was rightly done to avenge the crimes against Hindu women in 14th, 15th and god knows how many centuries, as a skewed historical narrative became popular narrative. The slogans during the Jan tar Mantra protests were increasingly against victim blaming in this patriarchal society. One of the most prominent slogans was, instead of teaching us not to be raped, teach men not to rape. The other factors held responsible for provoking men to rape has been identified as the increasing demands for freedom of women, the commoditization of women, capitalism and urbanization. Rape has been seen as an institution of India, as opposed to RSS Mohan Bhagat's Bharat. It has been seen as a result of westernization and urbanization by Mohan Bhagat. He had called for a restoration of the Indian cultural values. But apart from a religious fundamentalist like him and others, renowned intellectuals have also linked rape with capitalism and urbanization. Ashish Nandy (2013) has identified a link between increasing cases of rape and modern urban India. He talked about anomic rapes that are characteristic of highly individualised and personally thin cultures prevalent not only in India but in most countries. But these views and linkages have met serious opposition. The linkage of rape and increased freedom for women has been severely attacked by Kavita Krishnan. Kavita Krishnan (2013), as a response to Raj Kishore's article Vaam sedakshintakek hi tark(The same argument from Left to Right), published in Rashtriya Sahara dated 13th January 2013, addressed the questions on women's freedom and the linkage with capitalism. Raj Kishore had equated freedom of women as crossing the limits of licentiousness. For him, it is an ideological fashion and a method to cross the limits. Krishnan identified these limits more as patriarchal, than as capitalist. Raj Kishore had blamed capitalism for commodification and objectification of women. He had argued that

capitalism has de-nude women and presented them as objects. As a response, Krishnan had highlighted the continuation of traditional and oppressive practices, reflected in Kishore's capitalist society. As for women presented as objects of lust and provoking men, she remarked, The patriarchal gaze teaches us all to see and judge women on the basis of their sexualized bodies. We do not look at men in the same way. Male actors also display their bodies and sing and dance: how come they are not accused of inciting lust and in turn, sexual violence? If kamukta (lust) inevitably results in sexual violence, how come women's kamukta (aroused by, say, Shah Rukh Khan or Salman Khan displaying their six-packs) does not make them violent towards men?Krishnan concluded that while capitalism has new ways to exploit women, commodification being one of them, it has, undoubtedly, accorded them economic and sexual freedom. The critique of these bourgeois freedoms, as she calls them, should not be from a traditionalistic point of view, rather it should be from the vantage point of socialism. Sreenanti Banerjee (2013)had also raised a similar argument that misogyny predates capitalism. She gives references to the laws of the Manu. So, as conveniently argued and targeting capitalism and westernisation for provoking men to rape, this was an attempt to once again blame the women and re-iterate patriarchy.

Rape a class, caste, religion and region crime targeting a certain

Arundhati Roy, in an interview, remarked, We are having an unexceptional reaction to an event which isn't exceptional. But the problem is that why is this crime creating such a lot of outrage is because it plays into the idea of the criminal poor, the vegetable vendor, the gym instructor, the bus driver actually assaulting a middle-class girl. But when rape is used as a means of domination by upper-castes, by the army or the police, it's not even punished. What about rapes during riots, rapes by army in the conflict zones, in Kashmir and the North east, what about the custodial sexual assault of SoniSuri and of the other women? Warisha Farasat (2012)had talked about the Armed Forces Special Powers Act(AFSPA) as providing an immunity to rape. In the AFSPA-imposed states, the army personnel have committed many cases of sexual violence, reported and unreported. In Kashmir, accusations of rape have been repeatedly made against the security force personnel. It has been alleged that rape and assaults have occurred during crackdowns, cordon and search operations. During these operations the men were held for identification outside their houses, near mosques or in a common ground while the security forces searched their homes. During these search operations, safeguards such as inclusion of a women officer in the search teams were never followed. She remarked. There have been

several reported cases of sexual assault and rape but AFSPA provides a legal immunity. Shuddhabratha Sengupta (2013)had, in the similar vein of AFSPA providing legal immunity to rape, had referred to the case of Manorama Devi, a Manipuri woman who was gang-raped and murdered by soldiers of Assam Rifles eight years ago and the case is still pending. Eight years have passed and the rapists and murderers of Manorama have not even been produced in court. They have not been produced in court because they are not civilians like Sharma, Sharma, Thakur, Gupta and Singh. They are men in uniform, not bus drivers, fruit juice vendors, cleaners and gym instructors. An enquiry was ordered and conducted, and its contents still remain secret. (Sengupta 2013) The rapes during riots have also been highlighted.Shuddhabratha Sengupta (2013)had asked for justice for the gang-rape victims during the anti-muslim riots in Gujarat. Rape is also a crime targeting the respectable women. So a typical tendency is to prove that the rape victim did not have morals. She was a sex worker. But isin't a sex worker a woman too? Amrita Nandy (2011) raised this concern. She talked about rapes with sex workers and how it is ignored or suppressed. She quoted one victim who said that even if they would report, the policemen would, in turn, ask them for sexual or monetary favours.

Conclusion
The Damini Rape Case and the related public uproar managed to bring the issue of rape in the public domain of discussions. Rape was viewed in different perspectives, not just through a legal perspective. But most importantly, all these interacted with/responded to each other, in the public discourse. It is true that judicial reforms cannot vouch for a safer city and nation. To what extent, can the police, if it ever becomes efficient, become vigilant and monitor every inch of public sphere. The attitudes have to be changed to curb the very thought of dishonour. And this can be changed only if discard the notion that women are weak, they are subservient and subordinate to men. It can only be stopped if we respect women and consider them as our equal counterparts as rape has often been the tool to control their mobility, speech and freedom. It is used to show them or remind them about their subordinate situation. However, judicial reforms cannot be discarded altogether as the change in attitudes will take time. It is important, therefore, to intertwine the two. Though rapes in India are not uncommon, the Damini Gang Rape case can be seen as a kind of watershed or as Veena Das's Critical Event in the history of gender. But as we see that the questions went beyond gender. The debates around rape in the public

discourse has incorporated custodial rapes, rapes during riots, by army men and public servants, touching upon several other issues. The recommendations of the Justice Verma Committee were, to some extent, satisfying and also socially inclusive. It had incorporated not only the state-sponsored sexual violence but had talked about rapes of not only women but men, homosexuals, transgender and people with different sexualities. Rape with members of LGBT community is a reality but there is little that is ever done. In reference to news report in Hindustan times, "I was raped by cops multiple times dated 22nd January 2013, a transgender person was raped several times by cops. I happened to meet her, as a part of my fieldwork, and asked her if she took any legal aid. She said that even though she was offered by many, she refused as she did not want to be victimized, raped and tortured again by policemen. She also said that this may also have an impact on the honor of her family. At that time, I didn't know what to say. She was not the only one. There were other people there who had gone through the same but where would they have reported? To whom? Many of the recommendations have been ignored. But these issues have atleast found a mention in the public discourse, the first step to a change. The case became a platform for many suppressed voices such as these. It has asked questions on the exclusive definition of rape. It has managed to ask several questions on the role of state to control as well as perpetrate the crime. It has also attempted to challenge the patriarchal norms in the society, attacked victim blaming and the misogynist farce of maryada.

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